223 Ill. 230 | Ill. | 1906
delivered the opinion of the court:
‘ Two grounds are urged in support of the decree of the circuit court: '(1) That there is no equity on the face of the bill; (2) that there is sufficient evidence of champerty, collusion and imposition to warrant the court in dismissing the bill on that ground.
This being a bill for an injunction and no other relief, if upon the face of the bill no sufficient ground for equitable relief is shown, the court may, on motion,'dissolve the injunction and dismiss the bill. (Edwards v. Beaird, Breese, 70; State Bank v. Stanton, 2 Gilm. 352; Puterbaugh v. Elliott, 22 Ill. 157; Winkler v. Winkler, 40 id. 179; March v. Mayers, 85 id. 177; Heinroth v. Kochersperger, 173 id. 205; Canal Comrs. v. Village of East Peoria, 179 id. 214.) If it be conceded that, upon sufficient evidence to show that the court and its processes are being used in bad faith and for fraudulent purposes, the court may dismiss the action, certainly it cannot be seriously contended that the evidence in this record would warrant such course. Here was a matter in dispute involving a large number of people on both sides of the controversy, and it is but reasonable to expect that the property ^owners on both sides of the dividing ridge would take an interest in any litigation the result of which would affect their interests. In a case where a common right is involved, the participation of any party having an interest in the_ result of the litigation cannot be held to be evidence of champerty or maintenance. It is said that any interest whatever in the subject matter of the litigation is sufficient to exempt one who gives aid from the charge of illegal maintenance. (5 Am. & Eng. Ency. of Law,—2d ed.—820, and cases there cited.) Aside from this, the law is well settled in this State that the fact that the litigation grows out of a champertous contract is no defense in a collateral proceeding, and the question can only be raised between the parties to the alleged champertous contract and their privies. (Torrence v. Shedd, 112 Ill. 466; Gage v. DuPuy, 137 id. 652; Burton v. Perry, 146 id. 71; Boone v. Chiles, 10 Pet. 177.) The dismissal of. the bill cannot be sustained on the alleged ■ ground that the litigation resulted from a champertous contract or that Sears is guilty of illegal maintenance in rendering aid to appellant. The decree, therefore, must stand or fall on the sole ground that there is no equity shown on. the face of the bill.
We think the utmost that can be claimed for the village of Gross Point is, that it has an easement to discharge the water through the culvert and down through the ditch to Lake Michigan. If such easement exists, (which is not now decided,) we do not consider it necessary to determine, under the issues as now presented, how or when it originated. If it commenced with the original construction in 1867 and by some sort of succession it is now claimed by the village, the voluntary reduction in 1883 from the, larger to the smaller opening would be evidence tending to show an abandonment of the prior right to the larger flowage. Assuming the existence of the easement as now enjoyed, it is contended that the village authorities, in the discharge of statutory duties, may, in their discretion, enlarge the culvert and thus increase the burdens on the servient estates. To this contention we cannot assent. The owner of an easement cannot materially • increase the burden of it upon the servient estate. (Jones on Easements, sec. 827.) For the purpose of this decision it must be assumed that the proposed change in the culvert will increase the burdens upon the lands of appellant. It is charged in the bill that such result will follow, and we think the facts stated support the charge. If, as appellees contend, no more water will pass through the proposed culvert than the present one, why should the village expend $5000 to build the new one ? It is not suggested that the present culvert is worn out or out of repair.
It is contended that the bill does not show a cause of immediate, irreparable and certain damages to the appellant. While the damages will depend, to some extent, on heavy rainfalls and freshets and the consequent accumulation of water in Skokie swamp, still courts take cognizance of such well known facts as that in certain seasons pf the year in certain localities there is a heavy rainfall and that in consequence there is a liability to freshets and excessive accumulations of water, and when a wrongful act is threatened which, in connection with this fact, will injuriously affect the' property rights of a citizen, it is one of the valuable features.of equity jurisdiction to anticipate and prevent such threatened injury. In such case the exercise of such jurisdiction is for the benefit of both parties,—in disclosing to the wrongdoer that he is proceeding without authority of law, and in protecting the innocent from injuries which, if inflicted, would wholly destroy his rights. (Vicksburg Water-works Co. v. Vicksburg, 185 U. S. 66; Same v. Same, 202 id. 453.) In a state of nature none of the water falling west of the dividing water-shed ever went upon appellant’s land. There is no water-course carrying the waters to Lake Michigan except this artificial ditch. Under the law no one has the right to collect water in an artificial channel and cast it upon the land of another in undue and unnatural quantities, contrary to its natural course, and if he attempts to do so a court of equity will interpose to prevent the act. Hicks v. Silliman, 93 Ill. 255.
The doctrine of Peck v. Herrington, 109 Ill. 611, is not in any way in conflict with the Hicks case. In the PeckHerrington case the water was carried by artificial drains to the channel where it would go in a state of nature and through this natural channel to the lower land, while in the Hicks case and in the case at bar the water is conveyed by an artificial ditch where, in a state of nature, it did not and could not go. The cases are in entire harmony.
It is strenuously contended that the village of Gross Point has a right, under the powers conferred upon it by the statute, to make this proposed improvement, and that a court of equity should not interfere with it in the discharge of its duties to the public. This contention cannot be sustained. Section 13 of article 2 of the constitution provides: “Private property shall not be taken or damaged for public use without just compensation. Such compensation, when not made by the State, shall be ascertained by a jury, as shall be prescribed by law.” • This provision of the constitution is not self-executing. Chapter 47 of Hurd’s Revised Statutes, entitled “Eminent Domain,” makes provision for the exercise of the right by all corporations or bodies politic to which the State has delegated the power of eminent domain. Cities, towns and villages are authorized by paragraph 89 of section 62 of the City and Village- act .to exercise the right for certain enumerated purposes. Still there is nothing in the Eminent Domain law or in the chapter on cities and villages authorizing municipal corporations to take or damage private property for public use except in the same manner and subject to the same restrictions as other agencies through which the right may be exercised. A municipal corporation has no greater right than a natural person to divert surface waters in large quantities by an artificial channel upon the land of another, except it may do this in the exercise of eminent domain, upon making just compensation as required by the constitution. Jones on Easements, sec. 775; City of Aurora v. Love, 93 Ill. 521; City of Elgin v. Kimball, 90 id. 356; Nevins v. City of Peoria, 41 id. 502; Stack v. City of East St. Louis, 85 id. 377; Young v. Highway Comrs. 134 id. 569.
Nor can this municipality proceed with this proposed improvement and relegate appellant to his action at law for the damages sustained. While equity will not take jurisdiction, at the suit of one whose property, or some part of it, is not actually taken, to restrain the making of an improvement or building a railroad, still where, as here, the threatened act involves an actual taking, the expropriation will be enjoined until the damages are ascertained and paid in the manner provided by the law. (Stetson v. Chicago and Evanston Railroad Co. 75 Ill. 74; Patterson v. Chicago, Danville and Vincennes Railroad Co. 75 id. 588; Chicago, Burlington and Quincy Railroad Co. v. McGinnis, 79 id. 269; White v. Metropolitan Elevated Railroad Co. 154 id. 620; Doane v. Lake Street Elevated Railroad Co. 165 id. 510; Parker v. Catholic Bishop, 146 id. 158.) In the last case above cited it is said: “It seems to be well settled in this State that where no part of the land or property of the complaining owner is physically taken for or in making the proposed public improvement, and the damages claimed to result are therefore consequential only, this provision of the constitution does not require the ascertainment and payment of such damages as a condition precedent to the exercise of the right or power.” The converse of this proposition is equally well settled.
It follows from what has been said that the court erred in dissolving the injunction and dismissing the bill, in consequence of which the decree of the circuit court of Cook county is reversed and the cause remanded to that court for further proceedings not inconsistent with this opinion.
Reversed and remanded.